|
<<previous | index | next>> VI. OBSTACLES TO JUDICIAL ENFORCEMENT OF LABOR LAW
Labor court procedures, in most cases, not only last longer than Ministry of Labor administrative procedures, but they include procedural requirements that may prove prohibitively burdensome for workers seeking justice for human rights violations.114 Data is not kept on the average duration of cases before El Salvador’s labor courts, but the estimates of the four labor court judges of San Salvador ranged from three to nine months.115 Cases then can be appealed to the labor courts of second instance and, ultimately, to the Supreme Court, a process which takes at least one-and-a-half years from the time of filing in most cases.116 Workers must present a minimum of two witnesses to support their cases before the labor courts, yet workers and San Salvador labor court judges explained to Human Rights Watch that finding witnesses willing and able to testify can be extremely difficult.117 A Labor Ministry official, speaking on condition of anonymity, similarly commented, “It is hard to get evidence because workers do not want to testify. They are afraid they will lose their jobs.”118 There is no “whistle-blower” protection in Salvadoran labor law nor protection against dismissal for testifying against an employer. As such, a co-worker may have to choose between testifying and her job. In at least one case, an employer even reportedly prevented an employee from testifying. According to a labor lawyer, a potential witness informed him that, in early 2002, when she arrived at the courthouse to testify on behalf of a fired co-worker, the head of human resources at the company was waiting at the courthouse for her. The head of human resources reportedly instructed her to get in a taxi or be fired and paid the taxi driver to take her far from the courthouse. The taxi left with the employee, and the former co-worker lost the case, as she was missing one of her corroborating witnesses. Afterwards, the company reportedly fired the potential witness.119 In some cases, even when workers successfully fulfill the procedural requirements and a judgment is rendered in their favor, enforcement of the judgment is elusive. For example, in the Confecciones Ninos case, described in chapter VII below, five former workers reportedly won a court judgment ordering the company to pay 100 percent of their severance pay. The employer claimed he could not pay and offered twelve machines instead. The judgment was reportedly issued in September 2002, but as of the end of July 2003, the court had not sold the machines and the workers had not received their payments.120 In other cases, workers are unable to proceed even to the preliminary, conciliation phase because the defendant employers do not appear and the labor court cannot find them to serve process. The employers close their factories and flee without fulfilling their legal obligations to their workers. For example, as discussed below, over 320 cases have been filed in San Salvador’s labor courts against Anthony Fashions, which reportedly closed without paying workers severance pay, annual bonuses, and other debts. The owner has allegedly fled, and the cases are stalled and being dismissed without prejudice. Unlike civil and commercial cases,121 there is no legal provision allowing the appointment of a curator ad litem to represent absent employers in labor law proceedings. Commenting on the strict service of process requirements in labor-related cases, the judge for the Second Labor Court of San Salvador noted, “Many times [employers leave], and the workers are left without severance pay. . . . A labor reserve does not exist. . . . Labor law should contemplate a guarantee for these cases so that the workers’ [rights] are not violated.”122 113 Human Rights Watch interview, Ovidio Ramírez Cuéllar, judge, Third Labor Court of San Salvador, San Salvador, February 12, 2003. 114 Human Rights Watch interview, Carlos Aristides Jovel, judge, First Labor Court of San Salvador, San Salvador, February 14, 2003. 115 Ibid.; Human Rights Watch interview, Juana Isabel Vargas, interim judge, Second Labor Court of San Salvador, San Salvador, February 12, 2003; Human Rights Watch interview, Ovidio Ramírez Cuéllar, judge, Third Labor Court of San Salvador, San Salvador, February 12, 2003; Human Rights Watch interview, Irma Arelys Zelaya Gómez, judge, Fourth Labor Court of San Salvador, February 14, 2003. 116 Human Rights Watch interview, Carlos Aristides Jovel, judge, First Labor Court of San Salvador, San Salvador, February 14, 2003. In contrast, labor inspectors told Human Rights Watch that, in most cases, solicited administrative inspections are conducted within two to seven days. If proper procedures were followed, re-inspections would be conducted fifteen days later, and if violations were not remedied, the sanctions process would commence, which, including the right of appeal to the director general of the Labor Inspectorate, would last no more than a month. Only if parties assert that the Labor Ministry acted illegally in the case can they appeal to the Division of Disputed Administrative Matters of the Supreme Court. Human Rights Watch interview, Eduardo Avila, labor inspector, Department of Industry and Business Inspection, San Salvador, February 13, 2003; Human Rights Watch interview, Edmundo Alfredo Castillo, supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 13, 2003; Human Rights Watch interview, Giselda Yanet Cornejo de De León, labor inspector, Department of Industry and Business Inspection, San Salvador, February 13, 2003; Human Rights Watch interview, Ada Cecilia Lazo Gutiérrez, supervisor of labor inspectors, Department of Industry and Business Inspection, San Salvador, February 13, 2003; see Labor Code, arts. 628-630. 117 Code of Civil Procedures, December 31, 1881, reprinted in Diario Oficial, no. 1, vol. 12, January 1, 1882, art. 321; Human Rights Watch interview, Juana Isabel Vargas, interim judge, Second Labor Court of San Salvador, San Salvador, February 12, 2003; Human Rights Watch interview, Ovidio Ramírez Cuéllar, judge, Third Labor Court of San Salvador, San Salvador, February 12, 2003. 118 Human Rights Watch interview, Labor Ministry official, San Salvador, February 9, 2003. 119 Human Rights Watch interview, Victor Aguilar, director, CSTS, San Salvador, February 5, 2003; e-mail message from Victor Aguilar, director, CSTS, to Human Rights Watch, March 3, 2003. 120 Human Rights Watch telephone interview, Dora Amelia Ramos, provisional secretary, Union of Confecciones Ninos Workers (SITRACON), July 12, 2003; e-mail messages from Elias Misael Caceres, secretary of organizing and statistics, Federation of Independent Associations and Unions of El Salvador (FEASIES), to Human Rights Watch, February 3, February 27, and July 3, 2003. 121 Code of Civil Procedures, art. 141. 122 Human Rights Watch interview, Juana Isabel Vargas, interim judge, Second Labor Court of San Salvador, San Salvador, February 12, 2003.
|